FAYETTEVILLE — Hollis Wayne Fincher, the Washington County Militia leader convicted of having an illegal machine gun and a sawed-off shotgun, is asking his conviction be set aside.
Fincher, acting as his own attorney, filed the motion Tuesday in U.S. District Court in Fayetteville. He contends his attorneys have been ineffective because they did not require the federal Bureau of Alcohol, Tobacco and Firearms to prove they had jurisdiction over his case.
Four different attorneys have represented Fincher.
Fincher also contends federal laws shouldn’t apply to firearm transactions that do not involve interstate commerce. He contends the state had jurisdiction in his case, not federal authorities.
All charges should be declared void for lack of jurisdiction and Fincher should be immediately released, according to the motion.
A federal magistrate judge has ordered the government to respond to Fincher’s motion.
Fincher, 64, was convicted in U.S. District Court in January 2007 for possessing a machine gun and an unregistered firearm. Fincher had two .308-caliber machine guns, versions of the Browning model 1919, and several other firearms, including 9mm STEN design submachine guns and a shotgun.
Fincher was sentenced in June 2007, to six years in federal prison. He is also required to pay a $1,000 fine. The prison sentence falls within the minimum recommended guidelines for the offense.
Fincher, a leader of the Washington County Militia, was convicted by a jury. He never denied having the guns but said he had a constitutional right to possess them under the Second Amendment’s right to bear arms because there was a reasonable relationship to the amendment’s reference to maintenance of a well-regulated militia.
The U.S. Attorney’s Office became aware before trial that Fincher intended to argue he had a Second Amendment right to possess the guns. They argued that the issue was a matter of law for the judge to determine, not a question of fact for a jury to decide. U.S. District Judge Jimm Hendren allowed Fincher to present evidence on the issue outside the presence of the jury.
At the close of the government’s case, Fincher asked for acquittal but Hendren denied the motion, saying it was an attack on the law, not the evidence, and the fact a particular weapon may have military uses does not by itself establish a Second Amendment right to have it.
Hendren further ruled that the Washington County Militia, despite attempts to receive state recognition, was an unorganized and unregulated militia that doesn’t fall within the auspices of the Second Amendment. Even if the militia was state-sponsored or -connected, there was no evidence that the person in charge would be the one to determine whether possession of machine guns or sawed-off shotguns was necessary to the preservation of a well-regulated militia, Hendren said.
The 8th U.S. Circuit Court of Appeals upheld Fincher’s sentence in August 2008. The appeals court sent back for further work the question of whether Fincher should have to pay $8,357 for a court-appointed attorney because he misrepresented his financial worth and transferred property to his daughters after his conviction to protect it from being sold to pay his fine.
Fincher is serving his sentence at a federal prison in Forrest City.